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103 F.

3d 144
96 CJ C.A.R. 2032
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Terry Wayne HOWELL, Petitioner--Appellant,


v.
H.N. SCOTT; and Attorney General of the State of Oklahoma,
Respondents-Appellees.
No. 96-6183.

United States Court of Appeals, Tenth Circuit.


Dec. 9, 1996.

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. This cause is
therefore ordered submitted without oral argument.

Terry Wayne Howell appeals from an order dismissing his 28 U.S.C. 2254
petition for a writ of habeas corpus. The district court concluded that Howell's
ineffective assistance of counsel claim is without merit and his other claims are
procedurally barred because he failed to perfect a timely appeal in the
Oklahoma courts. We hold that none of Howell's claims have merit and, thus,
we deny the application for a certificate of appealability and dismiss the appeal.

On January 14, 1992, Howell pled guilty to several drug charges: (1) trafficking
in an illegal drug (based on his possession of a large quantity of
methamphetamine), after former conviction of a felony; (2) possession of LSD,
after former conviction of a felony; (3) possession of marijuana, second and

subsequent offense; and (4) possession of cocaine, after former conviction of a


felony. In return for his guilty pleas, the state dismissed a charge for possession
of paraphernalia and agreed to recommend certain sentences. The state judge
sentenced Howell consistent with the prosecutor's recommendations. The judge
then explained to Howell the following regarding his right to appeal:
4 Court: Mr. Howell, you have the right to file a petition in the Court of Criminal
The
Appeals for a Writ of Certiorari, which is a request that that court review your
judgment and sentence. That may be granted or denied. Do you understand that?
5Mr. Howell: Yes, sir.
6 Court: That petition must be filed within ninety days from today's date. Notice
The
of such filing must be given within five days thereafter by serving a copy of the
petition on the prosecuting attorney and on the attorney general for the State of
Oklahoma. Do you understand that?
7Mr. Howell: Yes, sir.
8

Plea and Sentencing Transcript at 11. However, the state sentencing judge did
not inform Howell that under Oklahoma law he was required to move within
ten days of final judgment to withdraw his guilty plea before he could petition
the Court of Criminal Appeals.

Howell did not move to withdraw his guilty plea or attempt to file a petition for
writ of certiorari to the Oklahoma Court of Criminal Appeals within ninety
days, but rather waited three years and then brought a petition for postconviction relief before the Comanche County District Court. In his petition for
post-conviction relief, Howell claimed that he received ineffective assistance of
counsel, his pleas were unknowingly and unintelligently entered, and he has
been subjected to excessive fines. After the state district court denied the
petition, Howell appealed to the Oklahoma Court of Criminal Appeals. The
Oklahoma Court of Criminal Appeals affirmed the denial of Howell's petition,
finding that "Petitioner did not seek to withdraw his guilty plea within
applicable time periods" and offered no reasons for his procedural default.
Howell v. Oklahoma, No. PC 95-917 at 1-2 (Okla.Crim.App. Sept. 27, 1995). 1

10

Then Howell filed this federal habeas petition raising the same claims that he
had in his state petition. On March 29, 1996, the magistrate judge issued a
report and recommendation recommending that Howell's petition be denied.
The magistrate judge reviewed Howell's claim regarding ineffective assistance
of counsel on the merits, but concluded that the claim has no merit. As for

Howell's claims regarding the voluntariness of his pleas and excessive fines, the
magistrate judge concluded that these claims are procedurally barred because
the Oklahoma Court of Criminal Appeals found that Howell failed to perfect a
timely appeal. The district court adopted the report and recommendation,
noting that Howell had failed to show cause and prejudice for his procedural
default.
11

It is not entirely clear whether the Oklahoma Court of Criminal Appeals


dismissed Howell's ineffective assistance of counsel claim on the merits or
deemed it procedurally barred.2 In any event, we have held that Oklahoma's
rule barring this claim if not raised on direct appeal does not bar the claim on
federal habeas review. See Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th
Cir.1994), cert. denied, 115 S.Ct. 2564 (1995). Thus, we review this claim on
the merits. Specifically, Howell complains on appeal that his counsel made the
following errors: (1) counsel never discussed with Howell the fact that the drug
trafficking charge resulted from Howell's possession of a large amount of
methamphetamine; (2) counsel never advised Howell or made any argument to
the court that the charges for possession of LSD, marijuana, and cocaine
resulting in three separate sentences could constitute double jeopardy or violate
Oklahoma law; and (3) counsel did not present an intelligent or knowledgeable
defense.3

12

In order to establish ineffective assistance of counsel, a habeas petitioner must


show both that counsel's performance was deficient and that the deficient
performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). A petitioner establishes the first prong by showing that counsel
performed below the level expected from a reasonably competent attorney in
criminal cases. Id. at 687-88. A petitioner who has pled guilty establishes the
second prong by showing a reasonable probability that without counsel's errors,
he would not have pled guilty and would have insisted on proceeding to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985).

13

None of Howell's allegations regarding ineffective assistance of counsel


satisfies the Strickland standard. First, Howell alleges that his counsel never
discussed with him the fact that the drug trafficking charge resulted from
Howell's possession of a large amount of methamphetamine. However, Howell
does not claim that he is innocent of the charge or that he had any defense to
the charge. Thus, he has failed to show a reasonable probability that without
counsel's alleged error he would not have pled guilty and would have insisted
on proceeding to trial.

14

Second, Howell complains that counsel never advised him or made any

argument to the court that the three separate charges and sentences for
possession of LSD, marijuana, and cocaine could constitute double jeopardy or
violate Oklahoma law. Howell's claim that multiple punishments for charges of
possession of LSD, marijuana, and cocaine constitute double jeopardy under
Oklahoma and federal law because they all arose from a single incident
involving the "single criminal act" of possessing drugs is ludicrous and, thus, a
reasonably competent attorney would not have advised a client or argued to a
court regarding this point.
15

Finally, Howell makes the conclusory statement that counsel did not present an
intelligent or knowledgeable defense. Howell does not explain what defense
counsel should have reasonably made, especially in the context of a guilty plea.
Accordingly, Howell has failed to show that his counsel's performance was
deficient or that any deficient performance was prejudicial.

16

Howell's remaining claims are that his pleas were not intelligently entered and
that he has been subjected to excessive fines. The Oklahoma Court of Criminal
Appeals held that these claims are procedurally barred because Howell did not
perfect a timely appeal. Under Oklahoma law, an appeal of a guilty plea must
commence with the filing of a motion to withdraw the plea within ten days of
judgment. Okla. R.Crim.App. 4.2(A). If the motion is denied, it may be
appealed within ninety days of judgment by writ of certiorari to the Oklahoma
Court of Criminal Appeals. Okla. Stat. tit. 22, 1051(a) (1986). Postconviction relief is not available to a defendant who has failed to perfect a
timely direct appeal unless the defendant shows "sufficient reason" why the
claim was not asserted. Okla. Stat. tit. 22, 1086 (1986). "In all cases in which
a state prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

17

Although it is undisputed that Oklahoma's procedural rule is independent of


federal law, Howell claims that it is not adequate because it is not consistently
applied in cases in which the defendant is not advised of his appeal rights and in
particular that he or she must move to withdraw the plea within ten days in
order to appeal. A state procedural rule is not adequate if it is not "strictly or
regularly followed." Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) (citations
omitted); see also Maes v. Thomas, 46 F.3d 979, 986 (10th Cir.), cert. denied,
115 S.Ct. 1972 (1995); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir.1993).
We have held that in general Oklahoma strictly and regularly applies its

procedural bar to issues which are not timely appealed. Odum v. Boone, 62
F.3d 327, 331 (10th Cir.1995); Brecheen, 41 F.3d at 1349 n. 4; Steele, 11 F.3d
at 1522.
18

Nonetheless, Howell has provided copies of three unpublished Oklahoma cases


which he asserts prove that Oklahoma does not regularly apply this procedural
rule in cases in which the defendant is not advised regarding the procedure for
withdrawing a plea. See Tate v. State, No. PC 92-0476 (Okla.Crim.App. July
14, 1992) (granting an appeal out of time where defendant was not advised of
appeal rights after conviction); Stanton v. State, No. PC-89-704
(Okla.Crim.App. Aug. 17, 1988) (granting appeal out of time because
defendant, after conviction, was denied an appeal "through no fault of his
own;" strong dissent suggesting that granting an appeal out of time "establishes
a dangerous precedent"); Smith v. State, No. F-89-50 (McIntosh County Dist.
Ct. Mar. 18, 1993) (order allowing defendant to withdraw guilty plea and
proceed to trial because trial court did not advise him of his "right to appeal").

19

Our own research of published Oklahoma law failed to reveal any cases
addressing whether the state has carved out an exception to the state's regularly
applied procedural bar in cases where a defendant pleads guilty but is not fully
advised regarding appeal procedures and rights. Because the Attorney General
did not address this issue in the court below and did not file a brief on appeal,
we have no input from the state regarding the state of the law as revealed in
published and unpublished opinions. Under these circumstances we are
reluctant to assess the adequacy of Oklahoma's procedural bar as applied to this
case. 4

20

Fortunately, we need not reach the issue of procedural bar in this case because
Howell's claims fail on the merits. See United States v. Sandoval, 29 F.3d 537,
542 n. 6 (10th Cir.1994) (holding that this court may affirm a district court
decision on any ground supported by record); Medina v. City & County of
Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992) (same). First, Howell claims
that his pleas were not voluntarily and intelligently entered based on his
allegations that the state judge did not advise him that the court could depart
from sentencing ranges or the prosecutor's recommendations,5 that he had a
right to plead not guilty, that by pleading guilty he was waiving his rights, and
that he could move to withdraw his guilty plea within ten days of judgment and
how that is accomplished.6 He also generally indicts the plea hearing because
he did not take an oath before the hearing 7 and because the judge had to be
reminded by counsel about the former conviction enhancement, announced that
the plea was voluntary before inquiring about Howell's competency, and did
not inquire about competency until reminded to do so by defense counsel. 8

21

Whether a defendant entered a knowing and voluntary plea of guilty is a


question of law which this court reviews de novo. Marshall v. Lonberger, 459
U.S. 422, 431 (1983); Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th
Cir.1996). We will uphold a state court guilty plea if the circumstances
demonstrate that the defendant understood the nature and consequences of the
charges and plea and voluntarily chose to plead guilty. Boykin v. Alabama, 395
U.S. 238, 242-44 (1969); Cunningham, 92 F.3d at 1060; Miles v. Dorsey, 61
F.3d 1459, 1471 (10th Cir.1995), cert. denied, 116 S.Ct. 743 (1996).

22

After reviewing Howell's allegations and the transcript of the plea and
sentencing hearing, we conclude that the Oklahoma judge conducted a
constitutionally adequate inquiry by: (1) explaining each charge and the
potential punishment and inquiring whether Howell understood the penalties;
(2) inquiring whether Howell understood that if he pleaded guilty he would be
sentenced within the explained limits; (3) explaining the right to jury trial and
inquiring whether Howell wanted to waive that right; (4) explaining the
privilege against self-incrimination; (5) explaining the state's burden of proof;
(5) inquiring whether Howell had discussed the charges with his attorney,
whether his attorney had explained his rights, and whether he understood his
rights; (6) inquiring whether his attorney had provided competent
representation; (7) inquiring whether he wanted to plead guilty; (8) inquiring
whether he committed the charged acts and asking Howell to explain the guilty
conduct in his own words; (9) inquiring whether the pleas were a result of
threats or coercion; (10) explaining that the court was not bound by the
prosecutor's recommendation (contrary to Howell's allegation); (11) inquiring
whether Howell was convicted of the prior felonies used to enhance the
sentences; and (12) inquiring, after being reminded by defense counsel,
regarding Howell's competency. See Miles, 61 F.3d at 1471-72.

23

Second, Howell claims that he has been subjected to excessive fines because of
his allegations that there is no state statutory authority for fines as punishment
for the crime of drug possession, that there is a $488.00 discrepancy between
the fines and costs assessed at the sentencing hearing and those reflected on the
Judgment and Sentence Sheet, and that there is an "ambiguous" fine in the
amount of $100 not mentioned in any court document. To the extent that
Howell claims violations of Oklahoma law, federal habeas relief is not
available for errors of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Matthews v. Price, 83 F.3d 328, 331 (10th Cir.1996). Furthermore, Howell's
allegations do not state a claim for a violation of the Eighth Amendment's
prohibition of excessive fines.

24

We construe Howell's application for a certificate of probable cause as an

application for a certificate of appealability now required by 28 U.S.C.


2253(c)(2). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996), petition
for cert. filed, No. 96-662 (U.S. Oct. 21, 1996). The application is DENIED for
want of "a substantial showing of the denial of a constitutional right," 28 U.S.C.
2253(c)(2), and the petition is DISMISSED.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

The court cited Smith v. State, 826 P.2d 615, 616 (Okla.Crim.App.1992), for
the proposition that under Oklahoma law a post-conviction petitioner is barred
from asserting any claims which could have been raised on direct appeal

The state district court reviewed Howell's ineffective assistance of counsel


claim on the merits but found that Howell failed to substantiate it. The state
district court dismissed Howell's other claims because of his procedural default.
The Oklahoma Court of Criminal Appeals affirmed the state district court's
order denying Howell's application for post-conviction relief. This suggests
that, like the state district court, it also found Howell's ineffective assistance of
counsel claim lacking on the merits. However, the Oklahoma Court of Criminal
Appeals also made the broad statement that Howell "waived and bypassed the
right to assert the issues now raised, and they may not be the basis of a postconviction application." Thus, we cannot discern whether the Oklahoma Court
of Criminal Appeals treated Howell's ineffective assistance of counsel claim on
the merits or determined that it was procedurally barred

In his brief submitted to the district court, Howell also argued that his counsel
was ineffective because he convinced Howell to waive the preliminary hearing
and formal arraignment, he made no investigation and did not prepare, he
guided the judge through the plea and sentencing proceeding, and he failed to
remind the judge to advise Howell regarding the procedure and time limits for
moving to withdraw the plea. Howell does not raise these issues in his appeal
and, thus, we deem them waived. However, even if we were to review these
allegations we would find them inadequate

The Attorney General would be well advised to monitor the evolution of case
law in Oklahoma regarding whether the state will or will not carve out an
exception to its procedural bar for cases involving defendants who have pleaded
guilty but have not been fully advised of appeal procedures and rights

Our review of the transcript reveals that the judge did explain to Howell that
the court was not bound by the prosecutor's recommendations. In any event, the
court did not deviate from either the sentencing ranges or the prosecutor's
recommendations

A state court is not constitutionally required to advise a defendant of a right to


appeal a guilty plea. Laycock v. New Mexico, 880 F.2d 1184, 1188 (10th
Cir.1989) (citing Crow ); Barber v. United States, 427 F.2d 70, 71 (10th
Cir.1970); Crow v. United States, 397 F.2d 284, 285 (10th Cir.1968)

This court has held that a state court is not constitutionally required to place a
defendant under oath at the time of plea proceedings and that statements made
in open court are adequate to support a plea. Phillips v. Murphy, 796 F.2d
1303, 1307 (10th Cir.1986)

Our review of the transcript reveals that even though the court did not inquire
about competency until reminded to do so by defense counsel, the inquiry that
followed was thorough. The court inquired of both Howell and his counsel
regarding Howell's competency. Furthermore, Howell does not allege that he
was not competent at the time he pleaded guilty